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Hojnowski v. Vans Skate Park3/10/2005
the purely legal question of whether a parent's execution of a release of a child's future tort claims, in these circumstances, was void against public policy. As my colleagues correctly observe, Anastasia did not argue either that she failed to understand the document she signed, that she was coerced into signing it, or that there was an imbalance of bargaining power that might impact upon the enforcement of the release. I would add that there is nothing about the physical appearance of the document or the language utilized by its drafter that would call into question its enforceability. The size of the print was adequate to give notice of its content and purpose, and the terms were expressed in simple and plain English. Accordingly, I agree with the majority's holding that the trial judge should have determined whether the pre-tort release was enforceable.
It is at that point, however, that I part company and respectfully disagree with Section III of the majority's opinion. My disagreement lies largely with my belief that, in the absence of parental unfitness, courts should not overrule parental decisions but should instead defer to a parent's own weighing of the benefits and risks when entering into agreements that relate to the activities of their children. In essence, I believe we should enforce pre-tort releases executed by parents on behalf of their children to the same extent we would enforce pre-tort releases signed by adults regarding their own claims.
II.
While the factual record is somewhat sketchy, I would infer from the circumstances that Andrew was a skateboarding enthusiast and his mother, in permitting Andrew to pursue the sport, sought a place more suitable than the streets, sidewalks and driveways of their community for Andrew to hone his skills and enjoy the sport. To obtain permission to use Vans' facility, Anastasia was required to sign the document in question. Since Anastasia has not claimed that she did not understand the agreement, and since there is nothing in the record to suggest that her execution of the agreement was not free and voluntary, it must also be assumed that Anastasia weighed the benefits and detriments of the transaction. By upholding Anastasia's waiver of the right to trial by jury, her waiver of the right to seek relief in a court of law, and her agreement to arbitrate any disputes, the majority has determined, and I agree, that Anastasia could, under these circumstances, validly consent to limit the legal rights that Andrew possessed. But the majority has also determined notwithstanding Anastasia's free, voluntary and knowing execution of the document, and notwithstanding the enforceability of the waiver of some rights through the execution of the document -- that public policy precludes the enforceability of the pre-tort release. Because it is only solicitous of Andrew's tort claims, I believe the majority opinion has failed to account for other valid, competing policies of interest to the public and, indeed, has adopted a principle that may prove more harmful than beneficial to skateboarding minors. In addition, the majority's hostility toward pre-tort releases, when applied to minors, is at odds with our Legislature's willingness to render participants solely responsible for injuries resulting from the inherent risks of similar activities.
I disagree with the majority's opinion because I believe the pre-tort release signed by Anastasia should not be invalidated. I believe this to be so because (a) a parent can legally execute a contract that binds a child, (b) the pre-tort release executed here would be upheld if invoked to avoid a suit based on an adult's personal injuries, (c) a parent has the constitutional right to mak
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